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[2022] ZAFSHC 336
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Sampi v Ntsi and Another (A44/2022) [2022] ZAFSHC 336 (30 November 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
CASE
NO: A44/2022
IN
THE MATTER BETWEEN:
SAMUEL
SAMPI APPELLANT
and
COMFORT
MOMPAI NTSI 1
ST
RESPONDENT
MANGAUNG
METROPOLITAN MUNICIPALITY
2
ND
RESPONDENT
CORAM:
VAN
RYHN, J
et
MPAMA, AJ
DATE
HEARD:
17
OCTOBER 2022
This
judgment was handed down electronically by circulation to the
parties' representatives by email and by release to SAFLII. The
date
and time for hand-down is deemed to be 14h00 on 30 November 2022.
JUDGMENT
BY:
MPAMA,
AJ
[1]
This appeal is against the whole
of the judgment and order and emanates from the Magistrate’s
Court, Bloemfontein. On 16 September 2021, the court
a quo
granted an order evicting the appellant and any person occupying
through the appellant from house No. [....] J[....], P[....],
Bloemfontein (the “property”).
[2]
Mr Samuel Sampi (the “appellant”) is an unemployed major
male from Bloemfontein.
He resides at the property with his brother,
Mr Diodi Sampi. The appellant’s brother is a person
living with a disability
and a recipient of a disability grant from
South African Social Security Agency (Sassa). On 16 September 2021,
the court
a quo
granted an eviction order against the
appellant and his brother after they were found to be in unlawful
occupation of the property.
[3]
The 1
st
respondent, Comfort Mompati Ntsi is the registered
owner of the property. On 19 July 2019 the 1
st
respondent purchased the property from Ms Anna Dipuo Mahloko (Ms D
Mahloko) and Modiehi Koba Mahloko (Ms M Mahloko), the representatives
and heirs in the estate of the Late Serame Steven Mahloko (“Mr
Mahloko”).
[4]
The 2
nd
respondent is the Mangaung Metropolitan Municipality, an organ of the
State, cited herein only for the purposes of compliance with
section
4(2) of the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act
[1]
(“PIE
Act”). No relief was sought against the 2
nd
respondent.
[5]
Mr Mahloko and the appellant’s
mother, Ms Dithlare Mariam Sampi were married to each
other in
community of property on 02 February 2013. Mr Mahloko died on 18
January 2014 leaving his wife. Mr Mahloko’s
wife passed
away on 10 October 2016. In their lifetime, Mr Mahloko and his wife
were the owners of the property in question. The
property is a house
built with a housing subsidy applied for and awarded by the then Free
State Department of Local Government
& Housing (referred to as a
RDP house). The appellant and his brother were residing at the
property with their mother and they
remained at the property after
their mother’s demise.
[6]
Mr Mahloko’s estate was not reported until March 2018. On
07 March 2018,
Ms M Mahloko signed deceased’s death notice in
terms of
section 7
of the
Administration of Estates Act, 1965
. It is
not clear how Ms D Mahloko relates to the deceased, however on the
aforesaid notice she is noted as the deceased’s
blood relative
and on another document, (J 192 attached) referred to as Mr Mahloko’s
child.
[7]
At the time Mr Mahloko’s
estate was reported, a form declaring Mr Mahloko’s
subsisting
marriages was completed by Ms D Mahloko. This form is attached as
“Annexure 19” to the record. Apparent
from this form is
that Ms D Mahloko declared that Mr Mahloko was single and never
married. In addition, Ms D Mahloko deposed
to an affidavit (J
192) stating that Mr Mahloko left no surviving spouse at the time of
his demise. (annexure “Sampi 17”)
This was a
misrepresentation of facts as Mr Mahloko in his lifetime was married
to the appellant’s mother and at the time
of his death he was
survived by his wife.
[8]
Unbeknown to the appellant, Ms M Mahloko and Ms D Mahloko were
appointed as the representatives
of the estate of Mr Mahloko. On
19 July 2019 they sold the property to the 1
st
respondent
for an amount of R100 000.00. The property was duly transferred
and registered in the name of the respondent on
09 November 2020.
[9]
On 26 April 2021, the respondent
instituted an application for the eviction of the appellant
and any
person occupying the property through the appellant at the
Bloemfontein Magistrate’s Court. The matter was opposed
by the
appellant and despite opposition the court
a quo
granted an
eviction order against the appellant on 16 September 2021. The
appellant now appeals against this order.
[10]
The appeal court will not interfere with the trial
court’s finding unless it is convinced that it
is wrong.
[11]
Essentially the appellant raised the following
grounds of appeal:
That
the court a quo:
(i)
Erred in not appreciating the legal
consequences of cohabitation and the subsequent civil marriage, in
that the appellant’s
mother was the owner of half of the
property and she also became an intestate heir in Mr Mahloko’s
estate.
(ii)
Erred in not appreciating the fact that
Mr Diodi Sampi was disabled.
[12]
The 1
st
respondent filed a notice to
oppose the appeal through his attorneys on 07 July 2022. However, no
opposing affidavit was filed
and on 30 September 2022, the
respondent’s attorneys filed a Notice of Withdrawal as
Attorneys of Record.
[13]
At the hearing of this matter the court was concerned that there was
no appearance for the respondent
given that the 1
st
respondent had filed a notice to oppose and thus, at some stage, he
had instructed an attorney to oppose the appeal. Mr. Nkhahle,
counsel
on behalf of the appellant, informed the court that the 1
st
respondent was adequately informed of the date of hearing and is
fully aware that the matter will be proceeding in court. In
amplification,
Mr. Nkhahle handed in a letter written by the1
st
respondent and delivered personally to the appellant. On perusal of
this letter the court was satisfied that the 1
st
respondent was duly informed of the date of hearing of this appeal.
As a result, the hearing of the appeal proceeded.
[14]
The PIE Act provides procedures for the eviction of unlawful
occupiers and also prohibits unlawful
evictions.
[15]
For an applicant to succeed in being granted an eviction order he
must satisfy the court of the
following requirements, that:
(a)
He is the owner of the land
(b)
The respondents are unlawful occupiers
(c)
It is just and equitable to grant an eviction order.
[16]
The following sections of the PIE Act are of
paramount importance:
Section
1 which defines an unlawful occupier as “a person who occupies
the land without the express or tacit consent of the
owner or person
in charge or without any right in law in law to occupy such land.”
Section
4(8) provides as follows: “If the court is satisfied that all
the requirements of this section had been complied with
and that no
valid defence has been raised by the unlawful occupier, it must grant
an order for the eviction of the unlawful occupier,
and determine-
(a)
a just and equitable date on which the unlawful occupier must vacate
the land under the circumstances; and
(b)
the date on which an eviction order may be carried out if the
unlawful occupier has not vacated the land on the date contemplated
in paragraph (a).
Section
4(9) provides as follows: “In determining a just and equitable
date contemplated in sub-section 8, the court must
have regard to all
relevant factors, including the period the unlawful occupier and his
family have resided on the land in question”.
[17]
If the court is satisfied that the requirements of
section 4 of the PIE Act have been complied with, and
the unlawful
occupier has no valid defence it must grant an eviction order.
[18]
The court must determine if the eviction will be
just and equitable, and in doing so it must have regard
to all the
relevant circumstances, including availability of land for the
relocation of the unlawful occupier, the rights of the
elderly,
disabled, women headed households and children.
[19]
Mr. Nkhahle submitted that the estate of the appellant’s mother
was not reported. He is
in the process of assisting the appellant to
report his late mother’s estate and the appellant intends to
approach the court
for an order to have the transfer of the property
to the
respondent set aside. Mr. Nkhahle contended that
the eviction of the appellant is not just and equitable considering
how the estates
of both Mr Mahloko and appellant’s mother were
handled. He further argued that the court
a quo
erred when it
found that the appellant and his brother were unlawful occupiers and
their eviction was just and equitable. On behalf
of the appellant, Mr
Nkhahle contended that the appeal be upheld with costs.
[20]
At the time of Mr Mahloko’s demise, the
appellant’s mother by virtue of marriage became entitled
to
half of the joint estate. The joint estate included the property in
question. In addition, in terms of
section 1
of the
Intestate
Succession Act 81 of 1987
the appellant’s mother inherited a
child’s share of Mr Mahloko’s intestate estate together
with Mr Mahloko’s
children. It goes without saying that the
appellant’s mother or her estate has a valid claim to the
property. Mr Mahloko’s
biological children, which includes Ms D
Mahloko and Ms M Mahloko, by failing to submit the correct
information in respect of the
marital status of Mr Mahloko when
reporting his death at the Master of the Free State High Court’s
office at Bloemfontein,
had no right in law to sell the property. By
selling the property they interfered with the mother of the
appellant’s right
to inherit from the joint estate.
[21]
The court a quo, correctly referred to the case of
PORT ELIZABETH MUNICIPALITY v VARIOUS OCCUPIERS 2005(1)
SA 217(CC),
however failed to apply the principles enunciated
in this judgment. Sachs J expressed as follows in para 32:
“
The
obligation on the court is to’ have regard to’ the
circumstances, that is, to give them due weight in making its
judgment as to what is just and equitable…What the court is
called upon to do is to decide whether, bearing in mind the
values of
the Constitution, in upholding and enforcing land rights it is
appropriate to issue an order which has an effect of depriving
people
of their homes”
[22]
The court went further and said on para 36:
“
The
court is thus called upon to go beyond its normal functions and to
engage in active judicial management according to equitable
principles of an on-going, stressful and law- governed social press”
[23]
It is not in dispute that the 1
st
respondent is the
registered owner of the property and that the appellant and his
brother have stayed at the property since their
mother’s death.
The evidence presented by the appellant in the opposed application
for eviction in the court
a quo
demonstrated that the sale of
the house was tainted with illegality and the court
a quo
failed to appreciate that. In the light of the lengthy period that
the appellant and his brother had occupied the house, the disability
of the appellant’s brother, the problems regarding the estate
of the appellant’s mother and the circumstances surrounding
the
sale of the property, I am satisfied that it is not just and
equitable to grant an order for the eviction of the appellant
and his
brother. The court
a quo
was misdirected when it found that it
was just and equitable to grant an eviction order.
[24]
The court has a discretion to award costs. The
general rule is that an unsuccessful party must pay the costs
of the
successful party. There is no reason to deviate from the general
rule.
[25]
In the circumstances, I would make the following
order:
1.
The appeal is upheld with costs.
2.
The eviction order granted by S.S Nteshe
dated 16 September 2021 is set aside.
L.
MPAMA, AJ
I
concur and it so ordered
I.VAN
RHYN, J
On
behalf of the appellant: Adv
J Nkhahle
Instructed
by: PRO
BONO COUNSEL
On
behalf of the 1
st
respondent:
no
appearance
[1]
Act 19 of 1998.